Exhibit 10.19
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 12th day of
December by and amongst Bidville Inc. (the "Company"); National Securities
Corporation (the "Consultant"); and Royal Palm Capital Group, Inc. ("Royal
Palm"). .
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration (the receipt of which is
hereby acknowledged) the parties hereto mutually agree and intend to be legally
bound to the terms of this Agreement as follows:
1. PURPOSE. The Company hereby retains the Consultant on a non-exclusive
basis during the term specified to render consulting advice to the Company
relating to financial, investment banking and merger/acquisition matters, upon
the terms and conditions as set forth herein.
2. TERMS AND CONSIDERATION. This Agreement shall be effective for a period
of twelve months commencing on the date first written above (the "Engagement
Period"), unless extended by mutual written agreement of the Company and the
Consultant. In consideration for the Consultant's work hereunder, Royal Palm has
previously agreed to issue to Consultant, upon execution of this Agreement,
3,966,700 shares of common stock for a total purchase price of $500.00
(.000126049(cent) per share). The Shares shall be non-assessable, non-refundable
and contain customary terms.
3. FINANCIAL ADVISORY SERVICES OF CONSULTANT. Consultant, based on its
review of the Company to date, believes that it may assist the Company by
performing the financial advisory services that are listed below and Consultant
shall be limited to providing only those such financial advisory services to the
Company. In connection with Consultant providing such financial advisory
services to the Company, the Company shall provide Consultant with any
information that Consultant deems appropriate. The Company hereby acknowledges
that Consultant will be using and relying on said information without
independent verification and that Consultant assumes no responsibility for the
accuracy and completeness of any information provided to it by the Company. In
performance of these duties, the Consultant shall provide the Company with the
benefits of its best judgment and efforts. It is understood and acknowledged by
the parties that the value of the Consultant's advice is not measurable in any
quantitative manner, and that the Consultant shall not be obligated to spend any
specific amount of time performing its duties hereunder.
(a) Providing the Company exposure to the investment community at
large through the dissemination of information.
(b) Assisting in the Company's financial public relations, by
participating in discussions with the Company and the financial community.
1
(c) Advising the Company about its financial structure and that of its
divisions or subsidiaries or any of its projects, as such relate to the
private and/or public market for the Company's equity securities.
(d) Advising the Company with respect to acquisitions in connection
with the possible effects on the public market for the Company's equity
securities.
(e) Advising the Company on the public market for Company's securities
and the timing and structure of any future public offering or private or
public merger or private placement of its equity securities.
Should the Company desire Consultant to provide any financial advisory
service(s) not listed above, the Company and Consultant shall enter into an
additional engagement letter to be executed by the parties hereto at the
commencement of the additional financial advisory service(s) to be rendered
by Consultant.
4. CONSULTANT'S RELATIONSHIPS WITH OTHERS. The Company acknowledges that
the Consultant or its affiliates is in the business of providing financial,
investment banking and merger/acquisition services and consulting advice (of all
types contemplated by this Agreement) to others. Nothing herein contained shall
be construed to limit or restrict the Consultant in conducting such business
with respect to others, or in rendering such advice to others.
5. CONFIDENTIAL INFORMATION. In connection with the rendering of services
hereunder, Consultant has been or will be furnished with confidential
information concerning the Company including, but not limited to, financial
statements and information, cost and expense data, production data, trade
secrets, marketing and customer data, and such other information not generally
obtained from public or published information or trade sources. Such information
shall be deemed "Confidential Material" and, except as specifically provided
herein, shall not be disclosed by Consultant without prior written consent of
the Company. In the event Consultant is required by applicable law or legal
process to disclose any of the Confidential Material, it is agreed that
Consultant will deliver to the Company prompt notice of such requirement prior
to disclosure of same to permit the Company to seek an appropriate protective
order and/or waive compliance of this provision. If, in the absence of a
protective order or receipt of written waiver, Consultant is nonetheless, in the
written opinion of counsel, compelled to disclose any Confidential Material,
Consultant may do so without liability hereunder provided that notice of such
prospective disclosure is delivered to the Company prior to actual disclosure.
Following the termination of this Agreement and a written request by the
Company, Consultant shall deliver to the Company all Confidential Material.
6. CONSULTANT'S LIABILITY & Indemnification of Consultant by Company.
(a) In the absence of gross negligence or willful misconduct on the
part of Consultant or Consultant's material breach of this Agreement,
Consultant shall not be liable to the Company or to any officer, director,
2
employee, agent, representative, stockholder or creditor of the Company for
any action or omission of Consultant or any of its officers, directors,
employees, agents, representatives or stockholders in the course of, or in
connection with, rendering or performing any services hereunder. Should
Consultant be found liable for any acts or omissions, the liability of
Consultant pursuant to this Agreement shall be limited to the aggregate
fees received by Consultant hereunder, which shall not include any
liability for incidental, consequential or punitive damages.
(b) The Company agrees to indemnify Consultant in accordance with the
provisions of Annex A hereto, which is incorporated by reference in its
entirety and made a part hereof.
7. TERMINATION. This Agreement may be terminated at any time during the
Engagement Period by Consultant upon five (5) days prior written notice to the
Company, in the event that Consultant becomes aware of (i) any change in the
business or operations of the Company which Consultant reasonably believes may
adversely affect Consultant's ability to render the services contemplated
hereunder, (ii) any misrepresentation by the Company with respect to the
business operations, assets, condition (financial or otherwise), results of
operations or prospects of the Company, or (iii) any breach by the Company of
its obligations under this Agreement.
This Agreement may be terminated by Company only in the event of a material
breach by Consultant of its obligations hereunder, which breach remains uncured
for a period of thirty days after written notice of the breach is provided to
Consultant and any breach in reference to section 6A by consultant.
In the event of termination (i) this Agreement shall become void, without
liability on the part of Consultant or its affiliates, directors, officers or
stockholders, and (ii) Consultant shall be entitled to expenses it has incurred
up to the date of such termination.
Unless this Agreement is terminated or a new agreement is executed between
Company and Consultant, at the end of the Engagement Period, this Agreement
shall automatically be renewed and extended on a month-to-month basis. At such
time, either party may terminate the Agreement for any reason upon the provision
of thirty days prior written notice.
8. SALES OR DISTRIBUTIONS OF SECURITIES. If the Consultant assists the
Company in the sale or distribution of securities, the Consultant shall receive
fees and other forms of compensation as are customarily received by investment
bankers in similar transactions. Unless such sale or distribution falls under
the terms of the Finder's Fee Agreement. Such public offering or private
placement, undertaken by the Consultant on behalf of the Company, shall be
subject to an additional agreement to be executed by the parties hereto at such
time as is appropriate.
3
9. LIMITATION UPON THE USE OF ADVICE AND SERVICES.
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be
given hereunder, and the Company shall not transmit such advice to, or
encourage or facilitate the use or reliance upon such advice by others
without the prior consent of the Consultant.
(b) Company hereby acknowledges that Consultant, for services rendered
under this Agreement, makes no commitment whatsoever to recommend or advise
its clients to purchase the securities of the Company. Research reports
that may be prepared by Consultant will, when and if prepared, be based
solely on the merits, and independent judgment of analysts of the
Consultant.
(c) Company hereby acknowledges that Consultant, for services rendered
under this Agreement, makes no commitment whatsoever to make a market in
any of the Company's securities on any stock exchange or in any electronic
marketplace. Any decision by Consultant to make a market in any of the
Company's securities shall be based solely on the independent judgment of
Consultant's traders and related supervisory personnel.
(d) Use of the Consultant's name in annual reports or any other report
of the Company or releases by the Company require the prior approval of the
Consultant unless the Company is required by law to include Consultant's
name in such annual reports, other report or release of the Company, in
which event the Company shall furnish to Consultant copies of such annual
reports or other reports or releases using Consultant's name in advance of
publication by the Company, its affiliates or assigns.
10. DISCRETION. Nothing contained herein shall require the Company to enter
into any transaction presented to it by Consultant, which decision shall be at
the Company's sole discretion.
11. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
12. MISCELLANEOUS.
(a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed if to the Company, Bidville Inc. addressed
4
to it at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 or if to the
Consultant, addressed to it at National Securities Corporation, 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 or if to Royal Palm Capital Group,
Inc. addressed to it at 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000. Such notice or other communication shall be deemed to
be given on the date of receipt.
(b) If the Consultant shall cease to do business, the provisions
hereof relating to duties of the Consultant and compensation by the Company
as it applies to the Consultant shall thereupon cease to be in effect,
except for the Company's obligation of payment of Warrants and expenses as
stated in this document. This Agreement shall survive any merger of,
acquisition of, or acquisition by the Consultant and after any such merger
or acquisition shall be binding upon the Company and the corporation
surviving such merger or acquisition.
(c) This Agreement embodies the entire agreement and understanding
between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the central subject matter hereof.
(d) This agreement has been duly authorized, executed and delivered by
and on behalf of the Company and the Consultant.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Washington, without giving effect to its
rules regarding conflicts of laws.
(f) There is no relationship of partnership, agency, employment,
franchise or joint venture between the parties. Neither party has the
authority to bind the other or incur any obligation on its behalf.
(g) The Company hereby acknowledges that Consultant is not a fiduciary
of the Company and that Consultant makes no representations or warranties
regarding Company's ability to secure financing, whether now or in the
future.
(h) This Agreement and the rights hereunder may not be assigned by
Company without the prior written consent of Consultant. This Agreement may
be assigned by Consultant, in whole of in part, at its discretion, without
prior consent of Company. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors, assigns and
legal representatives.
(i) The Company shall provide Consultant with a copy of the resolution
of its Board of Directors authorizing this engagement and specifically, the
issuance of the Warrants and underlining shares.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
BIDVILLE INC. NATIONAL SECURITIES CORPORATION
/s/ Xxxxxx Xxxxxx /s/ Xxxx Xxxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxxxxxx
Title: Chairman/Director Title: Chairman & Chief Executive
ROYAL PALM CAPITAL GROUP, INC.
/s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman/Director
6
ANNEX A
INDEMNIFICATION
Recognizing that transactions of the type contemplated in this engagement
sometimes result in litigation and that National Securities Corporation's
("National") role is advisory, Bidville Inc. (the "Company") agrees to indemnify
and hold harmless National, its affiliates (including Olympic Cascade Financial
Corporation) and their respective officers, directors, employees, agents and
controlling persons (collectively, the "Indemnified Parties"), from and against
any losses, claims, damages and liabilities, joint or several, related to or
arising in any manner out of any transaction, proposal or any other matter
(collectively, the "Matters") contemplated by the engagement of National
hereunder, and will promptly reimburse the Indemnified Parties for all expenses
(including reasonable fees and expenses of legal counsel) as incurred in
connection with the investigation of, preparation for, or defense of any pending
or threatened claim related to or arising in any manner out of any Matter
contemplated by the engagement of National hereunder, or any action or
proceeding arising therefrom (collectively, "Proceedings"), whether or not such
Indemnified Party is a formal party to any such Proceeding. Notwithstanding the
foregoing, the Company shall not be liable in respect of any losses, claims,
damages, liabilities or expenses that a court of competent jurisdiction shall
have determined by final judgment resulted solely from the gross negligence or
willful misconduct of an Indemnified Party. The Company further agrees that it
will not, without the prior written consent of National, settle compromise or
consent to the entry of any judgment in any pending or threatened Proceeding in
respect of which indemnification may be sought hereunder (whether or not
National or any Indemnified Party is an actual or potential party to such
Proceeding), unless such settlement, compromise or consent includes an
unconditional release of National and each other Indemnified Party hereunder
from all liability arising out of such Proceeding.
The Company agrees that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this letter, then the Company shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to the Company and its stockholders on the one hand, and National on
the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
7
relative benefits to the Company and/or its stockholders and to National with
respect to National's engagement shall be deemed to be in the same proportion as
(i) the total value paid or received or to be paid or received by the Company
and/or its stockholders pursuant to the Matters (whether or not consummated) for
which National is engaged to render services bears to (ii) the fees paid to
National in connection with such engagement. In no event shall the Indemnified
Parties contribute or otherwise be liable for an amount in excess of the
aggregate amount of fees actually received by National pursuant to such
engagement (excluding amounts received by National as reimbursement of the
expenses).
The Company further agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with National's engagement hereunder except for
losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. The indemnity,
reimbursement and contribution obligations of the Company shall be in addition
to any liability which the Company may otherwise have and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth herein
shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
any Matter referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933 as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of this letter of National's engagement and (iv)
whether or not National shall, or shall not be called upon to, render any formal
or informal advice in the course of such engagement.
8
